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MOVING AWAY MOVING ON WITH CHILDREN

Posted By
Evans & Hubbard, Attorneys at Law

Your divorce is finally over. You and your ex-spouse have a parenting plan
that allows your children to have significant time with both parents,
and your children have adjusted well to the schedule. You are the primary
parent, but the other parent has every other weekend, one overnight in
the midweek, and half of the weeks in the summer. Life is good.

You move on with your life as a single parent. You are then offered a really
great promotion, one that will increase your earning potential by 40%,
and allow you to finally fund those college accounts that you have always
wanted to do. The only catch? You need to move across the country. What
do you do?

Or maybe you get really lucky on that internet dating site and you fall
in love. This person is great with your kids, he adds a great deal to
their lives. You get married, and you have more children. The only catch?
He’s in the military,
and is scheduled to be stationed in another country. What do you do?

Prior to 2005, the Court of Appeals in Oregon, usually found that if the
primary parent had a good faith reason to move – you weren’t
moving just to cut short the other parent’ access to the children
– then what was good for the primary parent was good for the children.
This was a legal version of “if Mama ain’t happy, ain’t
nobody happy.” As a result, when I tried a move away case in 2004,
where each parent had 50% parenting time, but the mother had “legal”
custody , the court allowed the move to another state because the mother
wanted to be closer to her family as a support system, despite the impact
to the father and children’s relationship.

In 2006, the Court of Appeals decided the case of
In re Marriage of Cooksey, 125 P3d 57, 203 Or App 157 (2005). In that case, mother had primary custody
of the minor children, father had alternating weekends, as well as holiday time.
Mother wanted to move about 3 hours drive time to another city. Her extended
family was there, her mother
needed care as she was getting older. There were great schools for the
kids, and parenting time could be
adjusted so that Father could have more time in the summer to make up
for the loss of weekends. The Court of Appeals
held that “the focus is solely on the best interests of the children.
More specifically . . . the focus is on the question whether the children
are “better served” by relocating.” Because the purpose
of the move was for mother’s benefit – to be closer
to her family, which may have benefits to the children, was not solely
for the benefit of the children, and did not allow the children to move.

Since that time, almost every Court of Appeals case has emphatically denied
that a parent has the ability to move with the children more than 60 miles
without notice to the court. In a case in 2009, the father moved more
than 2 hours away from the mother, which reduced Father’s parenting
time with the children to every other weekend. Mother’s new husband
then got a new job in Chicago. Father had already moved further away,
so Mother believed it to be reasonable for her to be with her
husband, especially since her children had developed a strong bond with
their stepfather. The Court believed otherwise
in the case of Herinckx and Matejsek, 218 P3d 137, 231 Or App 50,57 (2009):
“Moving the child to Chicago inevitably would detrimentally affect
the child’s relationships with the father’s wife, mother’s
family, and most significantly, with father, who would lose frequent,
regular parenting time, although he would continue to have the same total
amount of parenting time. As Knapp (the custody evaluator) noted, the
child benefits from spending time with both her parents. Under the circumstances
and in light of the statutory policy favoring frequent contact between
minor children and their parents, we cannot conclude that the potential
loss of the child’s relationship with Taylor (stepfather) is so
detrimental as to outweighs the inevitable damage to all of the child’s
other relationships, especially her relationship
with her father.”

The next move away case I tried in 2008 had what I thought were reasonable
facts. Father easily acknowledged that Mother was the primary parent who
did all of the day to day care of the children. Mother was employed at
a job that paid above minimum wage, but not much about minimum wage. Mother
was then offered a job about 2 hours away that would double her income.
The court was blunt – even though it was better for the children
to be with their primary parent – Mother could not move more than
20 miles away from Father without losing custody of her children.

The pendulum of judicial thinking may swing back somewhat, but the circumstances
that are allowing a move to
occur now have to be extreme. Given the economic recession of the past
several years, it is not unusual for a primary
parent to lose a job, and not be able to find employment within 60 miles
from the other parent. In some cases, where
the parenting time is relatively minimal, such as only alternating weekends,
and the primary parent is able to show
that the loss of job was not voluntary, a long period of time without
being employed while searching for work in the appropriate geographical
area, and the only job offered was out of state, then the court may allow
the move because of
economic necessity. Or if the noncustodial parent has not paid child support
in a significant length of time,
and the custodial parent does not have the economic or support network
to support the children without the child support, then the court may
allow the move, but is likely to order the primary parent to pay all of
the costs of transportation for the children.

However, if your life is moving on up with positives – new jobs,
new relationships, connection to family networks
– and your moving on up requires you to move on out of the 60 mile
radius, you will have to face a hard choice, and
it is likely to mean that you give up parenting time with your children,
or even primary legal custody of your
children.

Tigard Divorce Lawyers

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